Maritime Apartment Complex 1 Reconstruction Association (Law Firm Sol, Attorneys Hawon-won, Counsel for plaintiff-appellant)

Plaintiff Intervenor (Appointed Party)

The head of Gangnam-gu Seoul Metropolitan Government (Attorney Seo-jin, Counsel for defendant-appellant)

Intervenor joining the Defendant (Appointed Party)

November 13, 2013

Seoul Administrative Court Decision 2012Guhap21383, 35313 (Merger) Decided May 16, 2013

1. The defendant's appeal is dismissed.

2. Of the costs of appeal, the part arising between the Plaintiff and the Defendant is borne by the Defendant, and the costs of each intervention are borne by the Plaintiff’s Intervenor (Appointed) and the Intervenor’s Intervenor (Appointed) respectively.

1. Purport of claim

The Defendant’s imposition of each property tax on the Plaintiff from May 9, 201 to 2010, and each disposition on imposition of property tax on the Plaintiff from July 10, 201 and attached Table 2, respectively, from September 10, 201 to September 10, 201, and each disposition on imposition of property tax on the Plaintiff in attached Table 3, from May 9, 201 to September 10, 201, and from July 201 to September 10, 201.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

The reasons for this court's explanation are as follows: (a) 5th 20 of the reasoning of the judgment of the court of first instance "No. 13, 2008" is "No. 13, 2008"; (b) 15th 5th 5th 5th "the defendant's supplementary intervenor against the defendant's supplementary intervenor" is "the defendant's supplementary intervenor against the defendant"; and (c) 10th 5th 5th 5th 15th 15th 15th 200 as "the defendant's supplementary intervenor" is as stated in the reasoning of the judgment of the court of first instance, except for any addition under the judgment on the argument that the defendant

2. The defendant's assertion

The defendant asserts that the disposition in this case is not null and void because it is not clear even if the defendant's error is serious, since the plaintiff's assistant participant's temporary occupancy in the apartment can be seen as a de facto owner under Article 183 (1) of the Local Tax Act because the plaintiff's assistant participant has the right to exclusively use, profit from, and dispose of the apartment house with the share of the union members. ② The defendant's assistant participant temporarily occupied the apartment house in accordance with the provisional disposition in this case and can be seen as being used by the plaintiff, and ultimately, the plaintiff is an employer under Article 183 (3) of the Local Tax Act.

3. Determination

A. As to the Defendant’s assertion ①

Article 183(1) of the Local Tax Act provides that a person who actually owns the property as of the property tax base date shall be liable to pay the property tax, and the " de facto owner" under Article 183(1) of the Local Tax Act shall be deemed to mean a person who actually holds the ownership of the relevant property regardless of whether the person is registered as an owner on the public register (see Supreme Court Decision 2005Du15045, Mar. 23, 2006, etc.).

Article 105 (10) of the Local Tax Act provides that a housing association established under Article 32 of the Housing Act and a housing reconstruction association established under Article 16 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents shall be deemed to have been acquired by its members. The real estate for partnership use is merely a taxpayer for acquisition tax, and the association does not bear any tax liability as a taxpayer for acquisition tax. Thus, the plaintiff submitted the apartment house possessed by the supplementary intervenor to the defendant as its members and transferred it to the association members as a result of the management and disposal plan, and the owner of the collective building register was assigned to the supplementary intervenor as the supplementary participant, and the supplementary participant cannot be seen as having been subject to disposal against the will of the supplementary participant, and it is reasonable to view the above apartment house as being disposed of against the original owner of the apartment building register or the heir's right to be disposed of by lot. The plaintiff cannot be seen as having been subject to disposal of the remaining portion of the apartment house after the completion of the lawsuit by lot because it is not clear that the supplementary participant and the supplementary participant did not have any right.

Therefore, the defendant's above assertion is without merit.

B. As to the Defendant’s assertion

Article 183(3) of the Local Tax Act provides that an employer shall be liable to pay property tax in cases where it is impossible to verify the de facto owner because the attribution of ownership is unclear as of the property tax assessment basis date. "Where the de facto owner cannot be identified because the ownership is unclear" refers to the property, etc. in which the ownership itself created a dispute over the ownership ownership itself, and the owner on the public register is in a state of not managing it for a long time because he/she is missing or missing, and the "user" does not fall under the position of managing the relevant property temporarily (see Supreme Court en banc Decision 93Nu1022, Apr. 18, 1996, etc.).

In full view of the evidence adopted in the reasoning of the judgment of the court of first instance cited by this judgment, the defendant's supplementary intervenor shall pay the purchase price of the apartment in the Dong and house allocated according to the result of the pre-existing building and unit drawing in accordance with the provisional disposition order of this case from September 27, 2007 to February 22, 2008, and shall recognize the fact of occupancy in the apartment as shown in attached Form 4, as shown in attached Table 4. Accordingly, the plaintiff cannot be deemed to use the apartment, and only the defendant's supplementary intervenor shall manage the apartment temporarily until the purchase price of the apartment in which the defendant's supplementary intervenor moved is confirmed, and it is reasonable to deem that the plaintiff does not constitute an employer under Article 183 (3) of the Local Tax Act.

Therefore, the defendant's above assertion is without merit.

C. As to the defendant's argument

In order for an administrative disposition to be called a void as a matter of course, the mere fact that there is an illegality in the disposition is insufficient, and it is objectively obvious that the defect is in violation of important laws and regulations, and it is necessary to examine the purpose, meaning, function, etc. of the laws and regulations from a teleological perspective and to reasonably consider the specificity of the specific case itself (see, e.g., Supreme Court Decisions 86Nu112, Sept. 23, 1986; 2008Du11716, Feb. 12, 2009).

The plaintiff's disposition of this case is significant due to the tax disposition imposed on a person who is not a taxpayer.

Article 105 (10) of the Local Tax Act provides that a housing association under Article 32 of the Housing Act and a housing reconstruction association under Article 16 (2) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents shall be deemed to have been acquired by its members, and real estate for partnership use shall be deemed to have been acquired by its members, and the association shall be liable to pay acquisition tax as a taxpayer. Accordingly, the Plaintiff notified the Defendant of the apartment allocated to the Intervenor in accordance with the management and disposition plan, and accordingly, it was well known that the apartment that the Defendant prepared the building management ledger and allocated to the Intervenor was ultimately vested in the association members (this case’s disposal is clear after questioning the Ministry of Public Administration and Security as to whom the Plaintiff is liable to pay property tax among the Intervenors who are members of the association and the assistant association. However, considering the above opinion on the interpretation of the Acts and subordinate statutes of the Ministry of Public Administration and Security, it cannot be deemed that the Intervenor in charge of the Plaintiff’s temporary disposal of the apartment, such as acquisition tax, etc., was not known to the Intervenor in an objective situation.

Therefore, the disposition of this case rendered by the defendant to the plaintiff who is not a taxpayer as of the property tax assessment basis date is null and void as the defect is significant and obvious, and the defendant's above assertion is not reasonable

4. Conclusion

Thus, the defendant's appeal is dismissed as it is without merit.

[Attachment]

Judges Cho Dong-dong (Presiding Judge)